The niqab in the courtroom: protecting free exercise of religion in a post-Smith world.

• Author: Schwartzbaum, Adam

INTRODUCTION I. CULTURE OR RELIGION? WHY MUHAMMAD'S DECISION TO WEAR THE NIQAB IS RELIGIOUS A. African American Islamic Beliefs and Practices in Context B. Muslim Women and the Veil C. What Constitutes a Religious Belief II. FREE EXERCISE TODAY A. Setting the Stage B. Variance Among the Circuits III. APPLYING THE HYBRID-RIGHTS THEORY A. Invoking the Hybrid-Rights Exception B. Alternative Means of Arriving at Strict Scrutiny: The Sherbert Exception IV. THE CASE FOR THE NIQABAND THE STATE'S INTEREST IN REMOVING THE VEIL A. Accurate Identification and Safety B. Demeanor Evidence and Credibility Assessment C. The Confrontation Clause CONCLUSION INTRODUCTION

On a Wednesday morning at the small-claims court in Hamtramck, Michigan, (1) Judge Paul J. Paruk called Ginnah Muhammad to testify in support of her claim against Enterprise Rent-A-Car. (2) Muhammad, an African American convert to Islam, wore the niqab, a garment that covered her entire face, except for a slit revealing her eyes. Before she began, Judge Paruk asked her to remove her veil) He explained that "unless you take that off, I can't see your face and I can't tell whether you're telling me the truth or not and I can't see certain things about your demeanor and temperament that I need to see in a court of law." (4) Muhammad insisted that she could not remove the niqab before a male judge. (5) She explained that as "a practicing Muslim ... this is my way of life." (6) She said she could remove the niqab before a female judge, but "otherwise, I can't follow that order." (7)

Judge Paruk assured Muhammad that he was the only judge available and that he meant "no disrespect to [her] religion" but said that he understood that the niqab was "a custom thing," not a religious obligation. (8) Other practicing Muslim women, he reported, had told him that "what I wear on top of my head is a religious thing and what I wear across my face is a non-religious thing. It's a custom thing." (9) Muhammad insisted that for her, this was not the case; she wished "to respect [her] religion" and thus said, "I will not take off my clothes.... [T]his is part of my clothes, so I can't remove my clothing when I'm in court." (10) As a result, Judge Paruk dismissed the case without prejudice, and Muhammad left the courtroom. (11)

As a result of this small-claims action, the Michigan Supreme Court opened the court to public comment on Rule 611 of the Michigan Rules of Evidence. (12) Eventually, it issued an order amending the rule to grant state court judges the power to "exercise reasonable control over the appearance of parties and witnesses so as to (1) ensure that the demeanor of such persons may be observed and assessed by the fact-finder and (2) ensure the accurate identification of such persons." (13) Muhammad sued Judge Paruk in federal district court, alleging that he had violated her right to free exercise of religion and her civil right to access the courts. (14) The district judge abstained from the case, (15) and Muhammad appealed to the United States Court of Appeals for the Sixth Circuit (16) but withdrew the suit shortly before oral argument. (17) Therefore, the federal courts never addressed Muhammad's claims.

The Muhammad litigation highlights the tension between the individual right to free exercise of religion and judicial norms that address the probative functions of American courts. To what extent must criminal and civil courts accommodate religious preference? This Comment responds to these questions, offering lawyers and judges a framework for thinking about this complex area of the law.

Part I considers Islam and the African American Muslim community in America and explores the history and significance of Muslim dress codes, including the niqab. It argues that sincerely held beliefs about dress codes should be recognized as religious beliefs. Next, Part II assesses free exercise law, emphasizing the "hybrid claims" that Muhammad's case represents. Part III applies the strict scrutiny that hybrid claims demand, concluding that courts should respect religious obligations to wear different forms of headgear. Part IV assesses the compelling state interests the Michigan Supreme Court advanced to justify its policy, showing that the rules are not narrowly tailored and that the claimed state interests are less compelling than they initially seem. Finally, the Conclusion argues that the arguments employed to protect the right to wear the niqab apply with even greater force to other religious apparel, such as the hijab, kippah, or turban.

1. CULTURE OR RELIGION? WHY MUHAMMAD'S DECISION TO WEAR THE NIQAB IS RELIGIOUS

   The Constitution protects wearing the niqab if it is a religious practice. (18) A basic discussion of Islam and the history of veiling within its religious tradition reveals a great diversity of practice around the world.

   1. African American Islamic Beliefs and Practices in Context

      "Islam is one of the world's three major monotheistic religions," (19) followed by well over one billion people across the globe. (20) Muslims believe that in the seventh century, Allah (21) revealed his divine message to the prophet Muhammad, whose written testimony became the Quran. (22) Islamic beliefs are not monolithic; for over 1300 years, people in different parts of the world applied sharia (23) through a pliable interpretive process. Over time, Islam came to be studied and practiced differently based on region and society. (24) "Islam comprises not only the cosmological theme of the holy texts, but lived identities in local contexts, emerging within ongoing debates about what is right and what is wrong." (25)

      Ginnah Muhammad's African American Muslim community exemplifies the diversity that exists within the Muslim population worldwide. (26) "African Americans are the largest group of nonimmigrant Muslims in the United States," (27) comprising "about a third of the estimated 4 to 8 million Muslims in the U.S." (28) This distinctly American community is historically rooted in the religion of some African slaves and took hold in mainstream communities in the early twentieth cen- tury. (29) It experienced its largest growth in the 1960s as an outgrowth of Black Natlonahsm. (30) African Americans who turned to Islam sought an "alternative to and in some cases a subversion of the black church" (31) to create "a nation within a nation where they could enjoy freedom, fraternity, justice, and equality under their own government by hard work and a disciplined life." (32) Over time, mainstream African American Muslim communities disassociated themselves from much of the politicized and separatist ideology of institutions like the Nation of Islam so that today, the majority of African American Muslim women belong to "traditional Islamic religious groups in the United States." (33)

      Ginnah Muhammad is one such convert to Islam and may represent a group of African American women who "saw in Islam the opportunity to re-create [them]selves as women" and "lay claim to the strong women who surrounded the Prophet Muhammad, such as his wife Khadija, as [their] role models." (34) These women find comfort and support in each other, as well in as the moral, social, and cultural values of Islamic life, (35) including Muslim dress. (36)

   2. Muslim Women and the Veil

      Judge Paruk's statements from the bench highlight the divergent practices within the Muslim community. (37) In Islam, covering the body is known as hijab. (38) Hijab varies from wearing loose-fitting clothes and covering the hair to completely covering the face and hands, (39) and women observe it differently in various countries and regions. (40) The source of the obligation is disputed. Some Muslims argue that the practice is a mandate from the prophet himself and is contained in the Quran. (41) Others maintain that the verse applied only to the wives of the prophet in Medina. (42) Still others believe that the hadith contains the authority for the obligation. (43) The practice is buttressed by concerns for modesty that are incumbent on both men and women in Islam. (44) For many devout Muslim women, some type of body covering whenever they are in the presence of a man who is not their husband or close relatave, (45) especially a covering of the hair, (46) is an essential part of religious practice. (47)

      So many American Muslim women wear the headscarf (48) that the word hijab has become interchangeable with the headscarf itself. (49) In recent years, the practice of wearing a headscarf has blossomed, particularly among young, second-generation Muslim women. (50) The niqab, on the other hand, is much more controversial. A much smaller minority of Muslim women veil everything but the eyes. (51) In the early twentieth century, some Muslim scholars and leaders began to condemn the niqab. (52) Most Islamic jurists abandoned the face-veil requirement in the first half of the twentieth century; until recently, only a small minority of ultraconservative communities mandated the face-veil. (53) Saudi Arabia is the only country that requires women to wear the face-veil in public as a matter of law. (54) In 2009, Egypt's highest legal authority, Sheikh Mohamed Tantawi, issued an edict (later overturned) banning the niqab on the grounds that it is "a custom that has nothing to do with the Islamic faith." (55)

      It is therefore understandable that Judge Paruk might have been confused about the niqab's status as a religious obligation. Even within the community of Muslims who believe the niqab is required, opinions by some Islamic scholars suggest that it may be removed when giving testimony in a court of law. (56) These opinions influence some judges; Judge Corrigan devotes an entire section to "[e]xceptions to the [p]ractice of [v]eiling" in his concurrence to the order amending the Michigan Rules of Evidence. (57) He cites Freeman v. Department of Highway Safety & Motor Vehicle (58) as support for his conclusion that "Islamic law...